The Automated Vehicles Bill: Navigating the marketing restrictions for self-driving cars

In November 2023, the Automated Vehicles Bill was tabled in Parliament. Following a 4-year Law Commission review, the government hopes the Bill will help position the UK as a world-leader in this £42 billion industry by providing a clear regulatory framework for manufacturers and dealers.

The Bill focuses primarily on safety, liability and protecting consumers. In this article, we unpack some of the key provisions of the Bill and highlight some of the key issues for dealers and manufacturers when it comes to marketing automated vehicles to consumers in Great Britain.

What are the key provisions of the Bill?

The Bill provides for most of the technical detail to be dealt with through secondary legislation. However, the Bill deals with the following key issues:

The territorial scope of the core provisions of the Bill is limited to Great Britain – i.e. England, Wales and Scotland. They will not apply to Northern Ireland.

What are the rules for marketing self-driving cars under the Bill?

One of the Bill’s key aims is to protect consumers, and one way it seeks to achieve this is by ensuring that consumers are not misled into thinking the vehicle they’re considering buying can safely and lawfully drive itself, for example when, in fact, it only offers driver-assistance features that are “hands off, eyes on”. It is not hard to see the significant safety concerns this could present, and the government has suggested that legalistic disclaimers and warnings which, for example, seek to qualify certain marketing claims are unlikely to be effective.

There are therefore two main marketing restrictions in the Bill to help guard against this, as follows (click to expand):

Section 78: Certain words, expressions, symbols and marks will be reserved for the marketing of authorised automated vehicles only.

This list will be provided by way of secondary legislation, but it is suspected that use of the terms “self-driving”, “drive itself”, “driverless” and “automated vehicle” will be reserved for authorised automated vehicles only.

Using one of these terms to market a vehicle that has not been authorised as self-driving, or any equipment for use in such a vehicle, could result in an unlimited fine and/or up to 2 years imprisonment. The restriction extends to words, expressions, symbols or marks that so closely resemble a restricted term that they are likely to be mistaken for one.

Defences: there are several defences available, which include:

(i) that the term was not intended to convey any meaning to do with automation (e.g. self-drive van hire);

(ii) the term was directed to consumers outside Great Britain (GB) and due diligence was exercised to ensure it didn’t come to the attention of GB consumers or that it would be understood by GB consumers not to be directed at them; or

(iii) the person accused was engaged in an unrelated business (not in the manufacture or supply of the vehicle or equipment in question) and the term was used in a different context, such that the person had no reason to suspect its use would amount to an offence.

Section 79: A person must not make, or cause or allow the making of, communications which confuse consumers in Great Britain as to whether a vehicle if self-driving (i.e. capable of travelling autonomously, safely and legally).

This is a much broader restriction as it takes into account the overall presentation of a communication, rather than specific words or symbols used. It also includes an assumption that a vehicle which is not an authorised automated vehicle is not capable of travelling autonomously, safely and legally, meaning it therefore cannot be marketed as such.

An example provided in the Bill’s explanatory note would be to use ambiguous terminology in advertising material. An offence of this nature could also result in an unlimited fine and/or up to 2 years imprisonment.

Defences: there are two defences available for this offence:

(i) the person has exercised due diligence to prevent confusing end-users of road vehicles in Great Britain; or

(ii) the communications were formulated in the course of a business not involved in the manufacture or supply of the product or service in question.

Is it only UK companies that can be liable?

No. First, it is important to note that the liability for these offences is not limited to corporate entities; it is extended to all “responsible persons”. This means that directors, managers and other officers overseeing management of the business which consent to marketing communications which fall foul of these restrictions, or where their publication can be attributed to that person’s neglect, can also be found guilty of an offence.

In addition, these offences are not limited to Great Britain – they can be committed by businesses anywhere in the world, even where marketing communications are not specifically targeted at GB consumers. The government is keen to protect consumers against misleading multi-jurisdictional marketing of these technologies, particularly over social media, meaning the scope of these restrictions, and possible offences, is very broad. As mentioned above, there are some limited defences for overseas businesses where they can show they exercised due diligence to ensure GB consumers would not be harmed.

How will these restrictions be enforced?

As mentioned above, the penalty for both marketing offences is an unlimited fine and/or up to 2 years imprisonment. However, this would require the enforcer to bring criminal proceedings.

In the alternative, provision has been made for the acceptance of undertakings for future behaviour where the Secretary of State considers that a person has committed, or is likely to commit, a marketing offence under these sections, as well as the power for the Secretary of State to bring proceedings for injunctions to prevent the continuing effects of misleading marketing. The Bill provides for the publication of any undertakings given.

The Bill will also insert a line into the Consumer Rights Act 2015 to allow the Secretary of State to rely on the enforcement powers under that legislation. This will mean organisations like Trading Standards and the CMA may also have the ability to enforce these provisions.

When will I need to comply with these rules?

We are still waiting to see what the list of reserved marketing terms, symbols etc. will be, and these provisions won’t be enforceable until the Bill is passed.

However, the government has said that the marketing offences are likely to be the first provisions brought into effect, as they can apply before any vehicles have been authorised. It is therefore likely that the list of reserved marketing terms is the first piece of secondary legislation we see following Royal Assent of the Bill.

What is the expected timeline for the Bill?

The Bill is moving fairly swiftly through the parliamentary process; it was introduced into the House of Lords in November last year and is already at the second reading stage in the House of Commons.

The Bill received broad support in the House of Lords, though one key addition has been made to ensure that any safety principles to be applied by the Secretary of State should seek to ensure that authorised automated vehicles will achieve a level of safety equivalent to, or higher than, that of careful and competent human drivers. This is in addition to ensuring road safety in GB is better as a result of the introduction of driverless cars (as was already a requirement under the Bill).

We would expect this Bill to be a high priority for the government, given its desire to make the UK a global leader in this “transport revolution”. If the Commons makes any amendments, the Bill will need to go back to the Lords briefly for approval before it is ready to receive Royal Assent. It remains to be seen whether this will be affected by the general election which has been confirmed to take place in the second half of 2024.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at March 2024. Specific advice should be sought for specific cases. For more information see our terms & conditions.

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